H&M sues LA graffiti artist over fair use of his street art

H&M has sued an LA-based graffiti artist, requesting a court order to enable it to use the street art in the background of its new men's sportswear campaign called New Routine without having to pay the artist royalties.

H&MLA-based street artist Jason “Revok” Williams sent H&M a cease and desist letter in January, alleging the fast fashion retailer "included [his] original artwork in an advertising campaign for H&M products without his permission or knowledge.”

The specific artwork was a graffiti piece featured in H&M's recently launched men's sportswear campaign. The campaign, called New Routine, was shot in Williamsburg, Brooklyn. The images were shot against a backdrop featuring artwork by Revok.

H&M responded to Revok's letter with a lawsuit. It claims in its complaint that the graffiti is actually vandalism and therefore is not subject to copyright protection. This is the same argument Jeremy Scott and Moschino relied on in another graffiti in fashion fair use copyright case.

Interestingly enough, H&M added in its complaint that around the time of the photoshoot, it reached out to the NYC Department of Parks and Recreation to find out "whether it [needed] to pay royalties for the use of the graffiti images as part of the... shoot."

According to its complaint, H&M said a Parks and Rec rep said "The graffiti should [not] have been on the handball wall."

While the case will likely settle before trial, copyright law does not limit protection of work whether it is legally completed or illegal. The criteria for copyright protection is the artistic work must be an original work and in a fixed medium. Public policy may dictate otherwise, but there is also no question that Revok is a well established artist both in graffiti and studio works.

The artist was previously involved in a lawsuit against Roberto Cavalli, which the Italian label settled out of court in 2016.

H&M filed the lawsuit last week in Brooklyn federal court. No answer has been filed yet.